The Legal Brief: New Title IX Regs Apply to Employee Complaints of Sexual Harassment
On May 4, 2020, the Department of Education (“DOE”) issued new Title IX regulations, which direct how educational institutions receiving federal funds must address reports of sexual harassment and sexual assault involving both students and employees.
The Final Regulations Unequivocally Apply to Students and Employees
The final regulations require an education institution to “promptly” respond in a manner that is not “deliberately indifferent” when it has “actual knowledge” of “sexual harassment” in its “education program or activity” against a person in the United States. The final regulations limit the range of conduct that requires institutional action under Title IX, impose a number of new procedural requirements, and clarify that the new requirements apply equally to employees and students.
What Does This Mean?
The Title IX formal grievance procedures can apply to allegations of sexual harassment involving only employees because Title IX also protects employees of educational institutions, programs, or activities against sex discrimination and harassment. While most schools are aware of the implications of Title VII of the Civil Rights Act (“Title VII”) when an employee reports sexual harassment in the workplace (either by another employee, consultant, vendor, or any other person subject to the school’s control), now, schools must also take Title IX into consideration when an employee reports discrimination, harassment, or retaliation on the basis of sex. The new regulations require schools to “adopt and publish grievance procedures” to address sexual harassment complaints brought by employees. 34 C.F.R. § 106.8(c). The required grievance procedures do not need to differ from Title IX complaints involving students, and TASB has recently published update 115, which has recommended procedures for complaints against students or employees. The regulations do not require different procedures for employee-only Title IX complaints.
The final regulations make clear that Title IX applies to employees for purposes of administrative enforcement by DOE. Therefore, institutions will need to update not only their Title IX policies, but also their employment-related policies and employee grievance policies to incorporate the requirements in the final regulations.
Administrative Leave is Still Available Under the New Title IX Regulations
While the regulations require the formal grievance process for incidents involving when only the respondent is an employee and when both complainant and respondent are employees (i.e., employee-only incidents), the regulations do make it easier to take action with regard to an accused employee without the due process rights provided to accused students. For example, the new regulations permit a school to place an employee respondent on administrative leave pending the conclusion of the grievance process. Additionally, the Title IX Coordinator may dismiss a formal complaint if “the [employee] – respondent is no longer … employed by” the school. 34 C.F.R. § 106.45(b)(3)(ii).
Reminder to Post Title IX Training!
Finally, as a reminder, the regulations require schools to post the required Title IX training materials relating to the new regulations. This requires more than merely posting FFH and DIA updates.
Contact Sara Leon & Associates if you have Title IX questions or if you need the required Title IX training for your District.
Please also take note: The new Title IX regulations and their relevance to employment issues will be one of the topics at the law firm’s forthcoming Personnel Services Symposium on October 6, 2020 in collaboration with the Region 2 Education Service Center. Further information about the Symposium, including how to register, may be found at the following link:
Written By:Michelle Alcala
